State v. DuggarState v. Duggar
- Reporters:
- ,
- Before:
- Hogan, Prewitt, Maus, Crow
A jury has found defendant Lex A. Duggar guilty of robbery in the second degree in violation of
Because the State had a verdict, it is entitled to have the evidence taken and considered by this court in that light most favorable to the State, accepting all reasonable inferences which may be drawn from the evidence and rejecting all evidence and inferences which do not support the verdict. State v. Franks, 688 S.W.2d 787, 788 (Mo.App.1985); State v. Netzer, 579 S.W.2d 170, 173 (Mo.App.1979).
So viewed, the evidence was that about “10:30 [p.m.], somewhere around there,” one Steve Birkinsha, age 22, was working a cash register in a convenience store known as the Quik-Trip. Birkinsha was the Second Assistant Manager of the store which was located at Fourth and Gray in Joplin.
A pickup pulled up to one of the self-service islands. Birkinsha “cleared the pump” and the occupant of the pickup (defendant) pumped “[s]even dollars [worth of]” gas from the pump. Defendant walked into the store; Birkinsha told the defendant “Seven dollars on gas” and asked the defendant if he would like anything else. Defendant
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“Q. Was he wearing a jacket or a shirt, or what was he wearing?
A. Wearing a jacket.
Q. And was his right hand in the pocket of the jacket?
A. Right.
Q. Do you know whether or not he had a gun, Steve?
A. I have no idea.”
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The defendant spoke in a low key, seemed very serious to Birkinsha, and appeared to know that Birkinsha had set off an automatic alarm system in the course of opening the cash register. The defendant did not offer physical violence, did not display any weapon and made no threats. Birkinsha testified that he “felt threatened.”
Upon this evidence, the defendant‘s counsel has advanced two assignments of error. Essentially, the first point is that there is no evidence that defendant “forcibly” stole the money. The statutory phrase “threatens the ... use of physical force,” made applicable by
The defendant‘s second point is a two-part claim of instructional error. The trial court, recognizing that a jury might well find that the money was taken without that order of force which is an essential element of second-degree robbery, instructed the jury on stealing from the person without consent. The defendant in effect concedes that the proper way to submit the case was to submit stealing without consent as a lesser-included offense, and the precedents so hold. State v. Parker, 324 S.W.2d 717, 721-22 (Mo.1959); State v. Davis, 577 S.W.2d 110, 114 (Mo.App.1978); State v. Nylon, 563 S.W.2d 540, 543 (Mo. App.1978).
However, the defendant says the trial court should have submitted his tendered Instruction “A“, which hypothesized misdemeanor stealing without consent, rather than Instruction No. 6, which submitted stealing without consent from the person, defendant expansively argues, created a variance between the offense charged and the proof required. The information merely charged robbery from the possession of Quik-Trip, but the order of variance contended for by the defendant, if it is such, was considered by our colleagues at St. Louis at length in State v. Manns, 533 S.W.2d 645, 648-49[5, 6][7] (Mo.App.1976), and held not to be prejudicial.
The real substance of defendant‘s second point is that the trial court should have submitted only misdemeanor stealing without consent because he took less than $150. Such argument studiously ignores the fact that at the hearing on enhanced punishment, it was shown beyond cavil that the defendant had twice previously been convicted of stealing without consent. Given the language of
PREWITT, C.J., and MAUS and CROW, JJ., concur.